COMMONWEALTH PENNSYLVANIA v. HAROLD NEELY (04/23/82)

No. 1806 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Berks County at No. 77039701-4.

COUNSEL

Leonard J. Gajewski, Reading, for appellant.

George C. Yatron, District Attorney, Reading, submitted a brief on behalf of Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 298 Pa. Super. Page 332]

This is an appeal from judgments of sentence for attempted robbery, aggravated assault, and former convict not to own a firearm. Appellant seeks an arrest of the judgments or a new trial. We have concluded that he is not entitled to an arrest of any of the judgments but is entitled to a new

[ 298 Pa. Super. Page 333]

trial on the charges of attempted robbery and aggravated assault. We affirm the judgment of sentence for former convict not to own a firearm.

On March 6, 1977, at about 9:00 a. m., Susan Bonk heard "thuds" and cries of "I don't have any money" coming from her neighbor John Pearson's apartment. She called the police, and Officer Daniels responded. He entered the Pearson apartment and found Pearson, a 73 year old man, severely beaten and bleeding on the floor. Pearson was taken to the hospital in a comatose state. (At the time of trial Pearson had not regained sufficient mental capacity to testify.) Two men who were in his neighborhood at the time saw appellant, with bright red hair, and two companions flee in a direction away from the Pearson apartment. About twenty minutes later appellant and his two companions were arrested, some six to eight blocks away. Appellant had a .32 caliber revolver.

About ten hours after his arrest, appellant notified Detective Donald Matz that he wished to confess. After being read his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965), appellant confessed. His confession consisted of two parts, both of which were read to the jury.

The first part of appellant's confession was in response to a series of questions posed by Detective Matz. It was as follows:

Q. What is your full name?

A. Harold Spencer Neely.

Q. What is your home address?

A. 400 Church Street, Reading, Pa.

Q. Where are you employed?

A. Self-employed.

Q. Can you read and write the English language?

A. Yes.

Q. How far did you go in school?

A. Yes. I attended college.

Q. What college did you attend?

[ 298 Pa. Super. Page 334]

A. Allegheny Community College, Luzerne Community College and Northampton Community College and the University of Pittsburgh.

Q. Did you major in any particular subject?

A. Yes. I majored in psychology.

Q. Have you consumed any alcoholic beverages within the past 24 hours?

A. Yes.

Q. What type of beverage and how much did you consume?

A. I don't know. I drink all of the time. I drink whisky and beer.

Q. Have you taken any drugs or medications within the past 48 hours?

A. Yes, I took some "TIC" yesterday afternoon.

Q. What is "TIC"?

A. It is an animal tranquilizer.

Q. How did you take the "TIC"?

A. I dropped it.

Q. What does "dropping" mean?

A. I took it by mouth.

Q. Are you affected by the "TIC" or the alcohol at the time of this statement?

A. I don't think that I am.

Q. We are investigating an assault that occurred at 206 North Ninth Street today, being March 6, 1977. Do you know anything about this incident?

A. Yes, I do.

Q. Can you tell us what you know about this incident?

A. Approximately one month ago I went to see John Pearson at his store because I was interested in faith healing.

Q. How did you find out about John Pearson?

A. I didn't. I just went into his store one day and a conversation started on faith healing.

Q. Did you ever attend any of his faith ...

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